The IP Educator

This blog is part of the History and Intellectual Property (H-IP) series. The cycle of creativity and innovation enabled by IP is vital for the continued success of creators and innovators around the world, as evidenced throughout history and across all industries. H-IP looks at various aspects of IP through case studies connecting creativity and innovation from history to the present.

H.P. Lovecraft wrote, “The oldest and strongest emotion of mankind is fear, and the oldest and strongest kind of fear is fear of the unknown.” Perhaps it is a genuine fear of the unknown (or lack of understanding) that attributes to some people’s dismissal of the robust intellectual property (IP) protections that further innovation and creativity throughout society. While many may see the copyright concept of derivative works as a frightening Frankenstein’s monster, this IP protection plays a vital role in creative adaptations that bring popular characters, stories, music, movies, art, and more into new lights and interpretations, furthering creativity across generations.

Derivative works, commonly referred to as adaptations, are works “based on or derived from one or more already existing works.” Common types of published derivative works include translations, abridgments, condensations of preexisting works (such as Cliffs Notes or SparkNotes), or new editions of preexisting works that include editorial revisions, annotations, new images, or other modifications. Likewise, musical arrangements, audiobooks, sculptures based on drawings, drawings based on photographs, adaptations, dramatic works based on letters and journals, and film, tv, theater, or musical adaptations of stories, are all forms of derivative works.

For example, the 1939 film The Wizard of Oz is a derivative work from L. Frank Baum’s novel The Wonderful Wizard of Oz. These works further creative endeavors by building upon existing concepts, broadening audiences across mediums, and sharing creators’ interpretations. It is not always easy to adapt certain elements across mediums. Likewise, the written word leaves many things open for the reader’s imagination; thus, readers can visualize the same character or scene differently. Therefore, interpretations and liberties are often taken, such as Dorothy’s silver slippers becoming the iconic ruby red slippers or cutting several literary scenes from The Lord of the Rings trilogy to keep the films within time constraints.

Under copyright law, rightsholders maintain control over the derivatives of their works. If a work is not in the public domain or creative commons, anyone seeking to adapt it must get permission from the rightsholder (with certain exceptions).

These adaptations may also initiate IP rights in and of themselves. The aforementioned film and novel were each subject to separate copyrights. But not all derivative works are copyrightable, and not all elements of a derivative work are copyrightable. The derivative work must contain something new that is individually copyrightable (i.e., additions, changes, or other new material appearing for the first time in the work), and only this new element is copyrightable, meaning copyright protection does not extend to any preexisting material. Thus, creating a derivative work does not extend the duration of copyright protection.

One way to better understand the copyrightability of derivative works is by unpacking the history of Frankenstein’s monster. Mary Shelley wrote the famous novel Frankenstein; or The Modern Prometheus between 1816 and 1817. This is the original, copyrighted work, describing the creature as eight feet tall with a shriveled complexion, straight black lips, “yellow skin scarcely [covering] the work of muscles and arteries beneath; his hair was of a lustrous black and flowing; [and] his teeth of a pearly whiteness.” This description draws a starkly different visual from the modern, green-faced monster with short black hair and neck bolts.

Many of the first derivatives of the work came in the form of translations, compilations, and reprints, as the novel boasts more than 200 such derivatives. Many of these are individually copyrightable, but it is important to note that the publishers only maintain(ed) copyrights over their additions, alterations, or translations. The story itself, including the description of Frankenstein’s monster, belonged to Mary Shelley or her assignees until it entered the public domain.

Further derivatives include film adaptations, each with its own take on the story and the monster’s appearance. The silent era boasts at least three adaptations: Frankenstein (1910), Life Without Soul (1915), and Il mostro di Frankenstein (1921). The first film adaptation featured a wiry-haired creature with long, lanky fingers that was chemically created in a vat and whose gruesome appearance purportedly developed from the evil in Frankenstein’s mind. This adaptation ended with the creature disappearing as “the creation of an evil mind is overcome by love.”

Perhaps the most widely recognized adaptation is the 1931 movie featuring Boris Karloff as the iconic creature. Unlike Mary Shelley’s novel, this interpretation featured a lightning scene, a slow-moving monster, and a hunchbacked assistant. The hunchbacked character the world came to know as Igor developed through Universal Pictures’ Frankenstein series. In fact, much of the world’s associations with Frankenstein’s monster are attributed to this derivative work, including the yellowish-green skin color featured on the film’s promotional poster. The iconic neck bolts, green skin, big forehead, scar, and black-haired flat-top look generated new copyright and trademark rights for the film’s rightsholders. As the Library of Congress states, “Universal’s interpretation of the monster [through these five unique elements] was original enough for the studio to own a copyright over its artistic rendition,” and this iconic look is protected by IP until 2027.

However, as previously mentioned, the concept of Frankenstein’s monster still exists in the public domain. Thus, the world is filled with different interpretations of Frankenstein’s monster, including features such as blue skin, forehead stitches, grotesque chest cavities, a female artificially intelligent being, and even a semi-bald monster that sings and dances. Since 1910, more than 50 films and 80 television shows featured a Frankenstein’s monster character ranging in genre from comedy to tragedy and animation to action. The character is referenced in numerous music and radio programs and featured in toys, games, video games, and comics. At least 14 stage plays or musicals and 20 subsequent novels from across the globe are derived from Mary Shelley’s work.

To say the least, Mary Shelly’s Frankenstein inspires creatives across the generations. It paved the way for future copyrighted works such as the iconic 1931 film, Mel Brooks’ Young Frankenstein, the modern-day novel series Dean Koontz’s Frankenstein, and the picture book Frankenstein’s Cat.

However, sometimes the public, creators, and advocates skew the difference between merely inspirational and a derivative work. As technology advances and more people have predominantly free and rapid—if not immediate—access to creative works via online services such as YouTube, the general understanding of what constitutes public domain, fair use, or derivative works continues degrading. Cases such as those involving Internet Archives and the Star Trek fan film Axanar show the problem progressing, with the general public frequently siding against copyright owners, bolstered by anti-IP groups such as the Electronic Frontier Foundation who skew the facts to incite fear and anger. As H.P. Lovecraft said, these tactics prey upon “The oldest and strongest emotion of mankind.” But copyright is nothing to fear.

Rather, the cycle of creativity and innovation enabled by IP is vital for the continued success of creators and innovators. In addition to entirely new works, IP empowers creators and subsequent generations to develop new works based on original interpretations. This is why IP, and in particular copyright (including derivative works), is essential for the creative industries.